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Fishbach again sued for being senator, lieutenant governor

Minnesota Gov. Mark Dayton and Lt. Gov. Michele Fischbach, also the state Senate president, mug for the cameras Tuesday, March 13, 2018. They were in an elder care news conference together, one of the few times they have seen each other since Fischbach rose to the job a couple of months ago. She insisted upon remaining a senator, although Democrats say she cannot hold both positions. Don Davis / Forum News Service1 / 2

Lt. Governor Michelle L. Fischbach of Paynesville holds a copy of a much used 'Mason's Manual of Legislative Procedure' while talking to a reporter in her State Senate office in the Minnesota State Senate Office Building in St. Paul on Wednesday, Jan. 17, 2018. John Autey / Pioneer Press 2 / 2

ST. PAUL—Minnesota's lieutenant governor, who says her main job is state senator, is being sued a second time for holding both positions.

A constituent of Sen. Michelle Fischbach, R-Paynesville, filed suit, saying the state Constitution clearly says that one person cannot hold offices in two branches of government. The lieutenant governor is in the executive branch with the governor, while a senator serves in the legislative branch as one of 201 lawmakers. Fischbach is Senate president.

Destiny Dusosky of Sauk Rapids on Tuesday, April 10, filed a suit similar to one she filed earlier this year, which a judge threw out. At the time, the judge said it was filed too early, since the Legislature had not convened for the year.

He also said that only the Senate could determine if a senator is eligible to serve.

The issue is important because Republicans hold a 34-33 advantage in the Senate, meaning they all have to stick together and be present to pass partisan legislation.

Senate Minority Leader Tom Bakk, D-Cook, had said that the new lawsuit would be timed to give him the best chance of getting a Democratic majority. With six weeks left in the session, it is unlikely that events could happen quickly enough for him to get the majority this year, but if Fischbach is removed, the two parties would be tied and they would have to work together to pass legislation.

Bakk did not discuss that Tuesday, but said the constitutional question should be resolved.

"Holding two offices in two branches of government at the same time is a clear violation of our Minnesota Constitution," Bakk said. "This conflict of interest could call each one of Lt. Gov. Fischbach's Senate votes into question and undo months of work. It's time the constituents of Senate District 13 had a clear answer from the judicial branch."

Fishbach, who did not respond to the Tuesday suit, has said court opinions dating back to the 1800s show that a senator can temporarily be lieutenant governor. Since voters will elect a new governor and lieutenant governor to take office early next year, Fischbach considers the executive branch job temporary.

She has said her main job is senator, and she has refused to take the lieutenant governor salary and has not attended meetings of boards she is on. She also has not taken the oath of office, which the Constitution requires.

"Senate Democrats are resurrecting this controversy for political purposes, to create a needless distraction with only six weeks left of session," Senate Majority Leader Paul Gazelka, R-Nisswa, said. "Minnesotans aren't impressed by partisan bickering. They expect the Legislature, both Republicans and Democrats, to focus our attention on passing important legislation like tax reform and school safety to make Minnesota a better place to live."

Gazelka repeated the legal backdrop Fischbach used for the first suit: "Seven previous male Senate presidents have served as acting lieutenant governor, yet somehow it only became an issue when Sen. Michelle Fischbach took the job."

Senate GOP spokeswoman Katie Fulkerson said Fischbach would have no comment and has no plans to resign.

It would do no good for Fischbach to resign as lieutenant governor. The Constitution says that if the office is vacated, the most recently elected Senate presiding officer takes over. So even if Fischbach resigned as lieutenant governor, she would be automatically and immediately elevated to the position again.

The situation came about when Democratic Gov. Mark Dayton appointed then-Lt. Gov. Tina Smith to the U.S. Senate, replacing Sen. Al Franken upon his resignation.

The lieutenant governor's most important job is to replace the governor if he cannot continue in the role. While the Constitution does not list other duties, state law does place the lieutenant governor on several boards. Otherwise, the person in the job usually does what the governor wants.

Don Davis has been the Forum Communications Minnesota Capitol Bureau chief since 2001, covering state government and politics for two dozen newspapers in the state. Don also blogs at Capital Chatter on Areavoices.